PERECHESOV, et al. vs TOVARIAN

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with

26CV009550: PERECHESOV, et al. vs TOVARIAN 06/25/2026 Hearing on Motion to Compel Arbitration in Department 16D

a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

*** NOTICE: EFFECTIVE APRIL 13, 2026, THIS DEPARTMENT HAS MOVED TO THE TANI G. CANTIL-SAKAUYE COURTHOUSE LOCATED AT 500 G. ST. SACRAMENTO, CA. ALL MOTIONS NOTICED FOR DEPARTMENT 53 WILL BE HEARD IN DEPARTMENT 16D OF THE NEW COURTHOUSE. ALL PAPERS FOR THIS DEPARTMENT MUST BE FILED AT THIS NEW LOCATION AND WILL NOT BE ACCEPTED AT THE HALL OF JUSTICE. ALL HEARINGS WILL TAKE PLACE AT THIS NEW LOCATION. PARTIES MAY CONTINUE TO APPEAR REMOTELY IN DEPARTMENT 16D UNLESS SPECIFICALLY ORDERED OTHERWISE. ***

TENTATIVE RULING: Defendant Alexsey Tovarian’s motion to compel arbitration is ruled upon as follows.

In this action, self-represented Plaintiffs Denis Perechesov and Anastasiia Christanova allege causes of action against Defendant for legal malpractice, breach of fiduciary duty, fraudulent concealment, breach of contract, intentional infliction of emotional distress, and loss of consortium. The complaint is premised on allegations that Plaintiff Denis Perechesov hired Defendant to represent him before the Board of Immigration Appeals. On August 19, 2025, Plaintiff Denis Perechesov terminated Defendant’s representation. Plaintiffs allege that Defendant filed deficient motions to withdraw as counsel of record, failed to forward correspondence, failed to deliver the client file, and depositing a $2,500 advance into an operational account as opposed to a client trust account. (Comp. ¶¶ 7, 17.)

Defendant now moves to compel the action to arbitration pursuant to an arbitration provision in the parties’ written Attorney-Client Fee Agreement (“Fee Agreement”). Section 6 of the Fee Agreement, which is attached to the complaint, is titled “ARBITRATION OF ALL DISPUTES INCLUDING CLAIMS OF MALPRACTICE” and provides: “Any controversy between the parties regarding the construction, application or performance of any services under this Agreement, and any claim arising out of or relating to this Agreement or its breach, shall be submitted to binding AAA arbitration upon the written request of one party after the service of that request on the other party.” (Comp.

Exh. A § 6 [emphasis in original].) Section 6 also provides that each party has the rights of discovery as provided in CCP § 1283.05, that the venue for arbitration is in San Francisco County, California. (Id.) Section 6 also states that “[t]he parties further agree that damages arising from breach of contract or negligence are limited to the amount stated in this written agreement.” (Id.) The Fee Agreement states that Plaintiff Denis Perechesov would pay Defendant a total of $5,000 for the agreed upon services. (Id. at § 2.)

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A written agreement to submit a controversy to arbitration is valid, enforceable, and irrevocable consistent with standard contract principles. There is a strong public policy favoring the enforcement of arbitration agreements. (CCP. §1281; Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 706.)

On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy, the court shall order the petitioner and the respondent to arbitrate the matter if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) the right to compel arbitration was waived by the petitioner; (b) grounds exist for the revocation of the agreement; or, (c) a party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. (CCP §1281.2; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.)

Section 2 of the FAA is essentially the same:

A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or an agreement in writing to submit to arbitration an existing controversy shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

“Under both federal and state law, the threshold question presented by a petition to compel arbitration is whether there is an agreement to arbitrate.” (Sparks v. Del Mar Child and Family Svcs. (2012) 207 Cal.App.4th 1511, 1517.) “Absent a clear agreement to submit disputes to arbitration, courts will not infer that the right to a jury trial has been waived.” (Id. at 1518.)

“A party seeking to compel arbitration of a dispute ‘bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability. [Citation.]” (Jenks v. DLA Piper Rudnick Gray Cary US LLP (2015) 243 Cal.App.4th 1, 8.) Normal principles of contract interpretation apply to the interpretation of contractual arbitration provisions. Included among these is the long-accepted rule that ambiguities in an arbitration agreement, as in any other type of contract, must be interpreted against the drafting party. Interpretation of ambiguous provisions requires application of the canons of construction - such as resolving ambiguities against the drafter. (Victoria v. Superior Court (1985) 40 Cal.3d 734, 739, 745-747.)

Plaintiffs oppose the motion on numerous grounds. The Court will address those arguments in the order presented in Plaintiffs’ opposition.

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Notably, Plaintiffs do not dispute the existence of the Fee Agreement and also “do not contest that their claims fall within Section 6’s language.” (Opp. 7:7-8.)

Civil Code § 1668

Plaintiffs argue that Section 6 is void pursuant to Civil Code § 1668 because it constitutes an impermissible attempt to exempt Defendant from liability. Civil Code § 1668 states that “[a]ll contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.” (Civ. Code § 1668.) According to Plaintiffs, because Section 6 limits their damages to the “amount stated in this written agreement,” it operates as an exemption from liability.

The California Supreme Court has recently held that “section 1668 invalidates limitations of damages for willful injury to the person or property of another.” (New England County Foods, LLC v. VanLaw Food Products, Inc. (2025) 17 Cal.5th 703, 718.) In so holding, the Supreme Court made clear that parties may agree to limit liability for negligence not involving willful conduct unless they affect the public interest based on an analysis of certain factors. (Id. at 710.) The Supreme Court also clarified that Civil Code § 1668 “does not preclude parties from limiting their liability for pure breaches of contract absent a violation of an independent duty that falls within the ambit of section 1668.” (Id. at 717.) Rather, such provisions “are governed by contract principles such as unconscionability.” (Id.)

Here, Section 6 does state that “[t]he parties further agree that damages arising from breach of contract or negligence are limited to the amount stated in this written agreement.” (Comp. Exh. A § 6.) However, the section does not contain any language which would limit damages “for willful injury to the person or property of another.” Additionally, as held by the California Supreme Court, a limitation on damages for breach of contract is not prohibited by Civil Code § 1668.)

As also noted above, the California Supreme Court has held that limitations on liability for negligence not involving willful conduct may be invalid as against public policy. In making such a determination, a court looks at whether the limitation has “some or all of the following characteristics”: “It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public.

The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may

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pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.” (Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 98-101.)

Notably, Tunkl involved a scenario where a release from liability was imposed upon a patient as a condition for admission to a hospital. In Tunkl, the Supreme Court found that the hospitalpatient contract clearly affected the public interest, that the services of the hospital to members of the public who are in special need is a matter of practical necessity, and that the hospital held itself out as willing to perform services for members of the public. (Tunkl, supra, 60 Cal.2d at 102.) The Supreme Court further found that the hospital exercises a decisive advantage in bargaining as a would-be-patient is in no position to reject the agreement, bargain with the hospital, or find another hospital. “The admission room of a hospital contains no bargaining table where, as in a private business transaction, the parties can debate the terms of their contract.” (Id.) “In brief, the patient here sought the services which the hospital offered to a selective portion of the public; the patient, as the price of admission and as a result of his inferior bargaining position, accepted a clause in a contract of adhesion waiving the hospital's negligence; the patient thereby subjected himself to control of the hospital and the possible infliction of the negligence which he had thus been compelled to waive.

The hospital, under such circumstances, occupied a status different than a mere private party; its contract with the patient affected the public interest.” Plaintiffs present no analysis of the factors identified by the California Supreme Court in Tunkl and simply contend that Tunkl precludes the limitation at issue. Plaintiffs have not cited a single case which holds that a provision such as the one in Section 6 violates Civil Code § 1668.

In any event, even assuming without deciding, that the language in Section 6 related to damages was unenforceable pursuant to Civil Code § 1668, as pointed out by Defendant in reply, the Fee Agreement expressly states that if any provision “is held in whole or in part to be unenforceable for any reason, the remainder of that provision and of the entire Agreement will be severable and remain in effect.” (Comp. Exh. A § 14.) Thus, even if the Court were to conclude that the language stating, “[t]he parties further agree that damages arising from breach of contract or negligence are limited to the amount stated in this written agreement,” was invalid pursuant to Civil Code § 1668, the parties expressly agreed that the language may be severed from Section 6 and that the remainder of Section 6, specifically, the requirement for arbitration, remains enforceable.

In any event, out of an abundance of caution, and to eliminate any perceived and arguable uncertainty regarding the enforceability of this language, the Court will simply sever the portion of the Section 6 which states that “[t]he parties further agree that damages arising from breach of contract or negligence are limited to the amount stated in this written agreement.” This severance is consistent with the parties’ intent reflected at § 14 of the Fee Agreement to sever any provision deemed unenforceable without affecting the validity of the rest of the Fee Agreement.

Once that language is severed from Section 6, there is no possibility that Section 6 violates Civil Code § 1668.

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As a result, the Court concludes that Section 6 with the severance indicated above, is not invalidated by Civil Code § 1668.

Unconscionability

Plaintiffs next argue that Section 6 is unconscionable.

Both procedural and substantive unconscionability must be present in order for a contract provision to be unenforceable under the unconscionability doctrine. (Parada v. Superior Court (2009) 176 Cal.App.4th 1554, 1570.) “But they need not be present in the same degree. ‘Essentially a sliding scale is invoked which disregards the regularity of the procedural process of contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves.’ In other words, the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” (Armendariz v. Foundation Health Psychare Services, Inc. (2000) 24 Cal.4th at 114.)

Plaintiffs have the burden to prove unconscionability. (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 911.)

Procedural Unconscionability

The procedural aspect of unconscionability “concerns the manner in which the contract was negotiated and the circumstances of the parties at that time. [citations omitted] It focuses on factors of oppression and surprise. [citations omitted] The oppression component arises from an inequality of bargaining power of the parties to the contract and an absence of real negotiation or a meaningful choice on the part of the weaker party.’ [citations omitted].” (Morris v Redwood Empire Bancorp (2005) 128 Cal.App.4th at 1305, 1319.)

According to Plaintiffs, the Fee Agreement is an adhesion contract. An adhesion contract establishes “some degree of procedural unconscionability.” (Sanchez, supra, 61 Cal.4th at 914.) “[T]he initial question regarding procedural unconscionability is whether the contract was one of adhesion, namely, a ‘“‘standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.’”’” (Dougherty v.

Roseville Heritage Partners (2020) 47 Cal.App.5th 93, 103.) “A finding of a contract of adhesion is essentially a finding of procedural unconscionability.” (Flores v. Transamerica HomeFirst, Inc. (2001) 93 Cal.App.4th 846, 853.) The conclusion that a contract is an adhesion contract “heralds the beginning, not the end, of our inquiry into its enforceability.” (Mayers v. Volt Management Corp. (2012) 203 Cal.App.4th 1194, 1207.)

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Plaintiffs, however, do not present any evidence as to a lack of any opportunity to negotiate the terms. Notably, Plaintiff did not present a declaration with the opposition to the instant motion. Perechesov declares that the Fee Agreement was emailed to him “fully drafted.” (Perechesov Decl. ¶ 4.) While Perechesov declares that he had no opportunity to “discuss, change, or strike” any term and that he understood Defendant would not begin working until Perechesov signed the agreement, Perechesov does not declare that he made any attempt to negotiate any terms. Further the Fee Agreement contained a space for initials after each section and yet Perechesov initialed each section.

Plaintiffs also contend that English is not Perechesov’s first language and that the Fee Agreement falsely states that it was “interpreted to the client in his native language.” However, “[i]t is well established, in the absence of fraud, overreaching or excusable neglect, that one who signs an instrument may not avoid the impact of its terms on the ground that he failed to read the instrument before signing it.” (Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333, 339.) Indeed “[o]ne who signs an instrument when for some reason, such as illiteracy or blindness, he can not read it, will be bound by its terms in case the other party acts in good faith without trick or misrepresentation.

The signer should have had the instrument read to him.” (Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 163.) Perechesov concedes that before signing the Fee Agreement that he “ran the entire text through machine translation (Google Translate) myself.” (Perechesov Decl. ¶ 6.) While he asserts that he did not understand the legal consequences in no basis for a finding of unconscionability given the general rule that one is bound by a contract which they signed even if they did not read it.

The Court rejects any contention of surprise given that Perechesov had the Fee Agreement translated before he initialed every clause and signed the document.

To the extent that Plaintiffs contend that Defendant, as a fiduciary, had a duty to explain Section 6 of the Fee Agreement, they are incorrect. Defendant “was under no obligation to highlight the arbitration clause of its contract, nor was it required to specifically call out that clause to [the Plaintiff’s] attention.” ((Sanchez, supra, 61 Cal.4th at 914.) The case cited by Plaintiffs says nothing with respect to whether an attorney is required to explain an arbitration provision in a fee agreement. (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086–1087.)

As a result, the Court need not consider Plaintiff’s arguments regarding substantive unconscionability given both procedural and substantive unconscionability must be present in order for a contract provision to be unenforceable under the unconscionability doctrine. (Parada, supra, 176 Cal.App.4th at 1570.)

Substantive Unconscionability

Given that Plaintiffs failed to show any procedural unconscionability, the Court is not required to address any arguments regarding substantive unconscionability. However, even if Plaintiffs had shown some low level of procedural unconscionability due to an alleged adhesion contract, “the

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degree of procedural unconscionability of an adhesion agreement is low, and the agreement will be enforceable unless the degree of substantive unconscionability is high.’” (Peng, supra, 219 Cal.App.4th at1470 [citations omitted].) Plaintiffs have made no such showing.

“A provision is substantively unconscionable if it ‘involves contract terms that are so one-sided as to ‘shock the conscience,’ or that impose harsh or oppressive terms.’” (Parada, supra, 176 Cal.App.4th at 1573.”)

Plaintiffs first contend the requirement that the arbitration occur in San Francisco County is substantively unconscionable. The Court disagrees. The case cited by Plaintiffs involved an arbitration provision calling for arbitration in Utah despite the fact that the dispute involved small franchises located several thousand miles away in California. (Bolter v. Superior Court (2001) 87 Cal. App. 4th 900, 909.) Here, the venue is approximately less than 100 miles away in San Francisco County where Defendant’s law office is located.

This does not involve a remote location with no business justification. In reply, Defendant agrees that any arbitration may be held in Sacramento. The Court simply notes that the parties are free to make such an agreement regarding an arbitration in Sacramento but the Court need not sever the venue location from Section 6 because it is not substantively unconscionable.

Plaintiffs next argue that Section 6 unfairly requires the costs of arbitration to be borne by the losing party. Plaintiffs note that AAA fees could be almost $20,000 without even considering compensation for the arbitrator. Plaintiffs cite to Armendariz v. Foundation Health Psychare Services, Inc. (2000) 24 Cal.4th 83 as support for the proposition that an arbitration provision cannot be enforced where its costs would prevent a party from vindicating statutory rights. It is true that when dealing with nonwaivable statutory rights, arbitration agreements encompassing those rights “must be subject to particular scrutiny.” (Id. at p. 100.)

The agreement must not require payment of “either unreasonable costs or any arbitrators’ fees or expenses as a condition of access to the arbitration forum.” (Armendariz, supra, 24 Cal.4th at 102 [emphasis added]) Here, Plaintiffs have not alleged any causes of action based on nonwaivable statutory rights and thus Armendariz does not apply. Instead, Plaintiffs have alleged causes of action for legal malpractice, breach of fiduciary duty, fraudulent concealment, breach of contract, intentional infliction of emotional distress, and loss of consortium.

Moreover, Section 6 does not automatically require a losing party to bear all arbitration costs. Rather, it provides that “[t]he cost of arbitration, excluding legal fees and costs, shall be borne by the losing party or in such proportion as the arbitrator shall decide.” (Comp. Exh. A § 6 [emphasis added].)

Plaintiffs also point to the damages limitation in Section 6, but as mentioned above, the Court has severed that language consistent with the parties’ intent reflected in Section 14 of the Fee Agreement. While Plaintiffs assert that this language cannot be severed because the Fee Agreement is permeated with unconscionability, they are incorrect. This is not a scenario where the arbitration provision is permeated by unconscionable terms such that severance would be improper. Indeed, pursuant to Civil Code § 1670.5, a court has discretion to refuse to enforce the

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contract, sever the unconscionable clause, or limit application of the unconscionable clause. (Ramirez v. Charter Communications, Inc. (2024) 16 Cal.5th 478, 513.) “Here, we clarify that no bright-line rule requires a court to refuse enforcement if a contract has more than one unconscionable term. Likewise, a court is not required to sever or restrict an unconscionable term if an agreement has only a single such term. Instead, the appropriate inquiry is qualitative and accounts for each factor Armendariz identified.

At the outset, a court should ask whether ‘the central purpose of the contract is tainted with illegality.’ If so, the contract cannot be cured, and the court should refuse to enforce it. If that is not the case, the court should go on to ask first, whether the contract’s unconscionability can be cured purely through severance or restriction of its terms, or whether reformation by augmentation is necessary. If no ‘reformation is required,’ the offending provision can be severed or limited, and ‘the rest of the arbitration agreement left intact,’ then severance or restriction is the preferred course for provisions that are collateral to the agreement's main purpose.

If the unconscionability cannot be cured by extirpating or limiting the offending provisions, but instead requires augmentation to cure the unconscionability, then the court should refuse to enforce the contract. Courts cannot ‘rewrite agreements and impose terms to which neither party has agreed.’” (Id. at 516 [citations omitted].) Even if the contract can be cured through severance, a court may refuse to do so if it would “condone an illegal scheme” or if “the defects in the agreement indicate that the stronger party engaged in a systematic effort to impose arbitration on the weaker party not simply as an alternative to litigation, but to secure a forum that works to the stronger party's advantage.” (Id.)

The only potentially offending term in Section 6 is the damages limitation, which as noted above, Plaintiffs did not demonstrate violated Civil Code § 1668. There are no other terms in Section 6 which could be considered unconscionable. Unconscionability does not permeate the agreement such that refusal to enforce the agreement would be proper. (Armendariz, supra, 24 Cal.4th at 124.) “If the illegality is collateral to the main purpose of the contract, and the illegal provision can be extirpated from the contract by means of a severance or restriction, then such severance and restriction is appropriate.” (Id.)

While Plaintiffs point to other portions of the Fee Agreement as being unconscionable, the only focus of unconscionability on a motion to compel arbitration is the arbitration provision itself, not the non-arbitration provisions in the Fee Agreement. The provisions other than Section 6 relate to performance of the Fee Agreement. In ruling on a motion to compel arbitration, the Court only determines whether an agreement to arbitrate exists and whether there are grounds for revocation of the agreement to arbitrate. (CCP § 1281.2.) The issues raised by Plaintiffs outside of Section 6 may provide support for their substantive claims, but those matters are for the arbitrator.

In sum, Plaintiffs failed to demonstrate either procedural or substantive unconscionability. Assuming they did show a low level of procedural unconscionability based upon an adhesion contract, they failed to show the requisite high level of substantive unconscionability.

CCP § 1281.2(c)

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Relying upon CCP § 1281.2(c), Plaintiffs next contends that the Court should deny the motion because Plaintiff Anastasiia Chistanova is not a party to the arbitration provision. Where a party “to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact,” the Court has the discretion to refuse to enforce the arbitration agreement. (CCP § 1281.2(c).)

Plaintiffs argue that Anastasiia Chistanova’s claims are not premised on the Fee Agreement and instead are premised on claims that Defendant concealed correspondence, breached fiduciary duties, and violated Rule of Professional Conduct 1.16. The Court disagrees. Plaintiffs specifically allege that Anastasiia Chistanova was “an intended third -party beneficiary of the attorney-client relationship”, and that Defendant was retained to represent both Plaintiffs. (Comp. ¶¶ 2, 6.)

A nonsignatory may be compelled to arbitrate where the nonsignatory is a third party beneficiary of the contract. (Crowley Maritime Corp. v. Boston Old Colony Ins. Co. (2008) 158 Cal.App.4th 1061, 1069; Harris v. Superior Court (1986) 188 Cal.App.3d 475, 479.) In addition, a nonsignatory may be compelled to arbitrate when they voluntarily accept the benefits of a contract as they are bound by the burdens. (NORCAL Mutual Ins. Co. v. Newton (2000) 84 Cal.App.4th 64, 84.) Anastasiia Chistanova expressly alleges that she was an intended beneficiary of the attorney-client relationship which was created by the Fee Agreement.

She alleges that Defendant was hired to represent both Plaintiffs. Her claims depend for their existence upon the relationship created by the Fee Agreement. While Plaintiffs argue that Anastasiia Chistanova never actually received any benefits because the representation caused injury, in so arguing they effectively concede that she in fact received representation, but that such representation caused them injury.

The Court finds that Anastasiia Chistanova’s claims are also properly ordered to arbitration. CCP § 1281.2(c) thus does not preclude arbitration.

Waiver

Plaintiffs next argue that Defendant waived the right to arbitrate.

In determining waiver, a court can consider “(1) whether the party's actions are inconsistent with the right to arbitrate; (2) whether ‘the litigation machinery has been substantially invoked’ and the parties ‘were well into preparation of a lawsuit’ before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) ‘whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available

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in arbitration] had taken place’; and (6) whether the delay ‘affected, misled, or prejudiced' the opposing party.” (Sobremonte v. Superior Court (1998) 61 Cal. App. 4th 980, 992 [citations omitted].) There is no single determinative test of waiver, and the question for the trial court is one of fact. (Guess”, Inc. v. Superior Court (2000) 79 Cal.App.4th 553, 557.) Arbitration is strongly favored. Courts will closely scrutinize any claims of waiver and indulge every intendment to give effect to such proceedings. (Keating v. Superior Court (1982) 31 Cal.3d 584, 605, citations omitted, overruled on other grounds in Southland Corp. v. Keating (1984) 465 U.S. 1.) However, prejudice is no longer a consideration under California law in determining waiver. (Quach v. California Commerce Club, Inc. (2024) 16 Cal. 5th 562, 572.)

Plaintiffs argue that Defendant waived his right to arbitrate by participating in the State Bar fee arbitration, paying the fee award and declining a trial de novo and then only moving to compel only after being sued in this action.

Plaintiffs do appear to concede that participation in the State Bar fee arbitration does not show waiver. Indeed, none of the claims at issue in this action could even be pursued in the State Bar proceeding. The California Supreme Court has made clear that arbitration pursuant to the Mandatory Fee Arbitration Act (Bus. & Prof. Code §6200 et seq.) and the California Arbitration Act “do not even govern the same subject. The MFAA concerns nonbinding arbitration that the parties did not agree to in advance, while the CAA concerns binding arbitration agreed to in advance.” (Schatz v. Allen Matkins Leck Gamble & Mallory LLP (2009) 45 Cal.4th 557, 574.) “For all of the above reasons, we conclude that the MFAA does not stand as an obstacle to the enforcement of a valid agreement to arbitrate pursuant to the CAA.” (Id. at 575.)

The fact that Defendant paid the fees awarded in the State Bar arbitration and did not request a trial de novo has no bearing on waiver of the arbitration provision in the Fee Agreement. Again, the MFAA and arbitration pursuant to a valid agreement to arbitrate are completely separate procedures. Any conduct in participating in the State Bar arbitration which only dealt with a fee dispute does not show waiver.

Finally, Defendant timely asserted the right to arbitrate. Notably, it was Plaintiffs who filed the action on April 14, 2026, which raised claims subject to Section 6 in the Fee Agreement. Defendant filed the instant motion one month later on May 14, 2026. Defendant did not demurrer, did not propound discovery, or otherwise take any action inconsistent with the right to arbitrate. To the contrary, Defendant has acted consistent with that right at all times.

Plaintiffs have not carried their burden to demonstrate that Defendant waived the right to arbitrate.

CCP § 1281.8(b)

Plaintiffs also argue that the motion should be denied pursuant to CCP § 1281.8 which permits a

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party to an arbitration agreement to seek provisional remedies in connection with an arbitrable controversy “but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without provisional relief.” (CCP § 1281.8.) Plaintiffs contend that if their preliminary injunction motion is not granted, they may miss correspondence related to the Board of Immigration Appeal proceeding and they may lose the grant of asylum originally awarded.

Plaintiffs’ preliminary injunction motion was continued from May 28, 2026 to July 9, 2026 so that the instant motion could be heard first. In the May 28, 2026, minute order, the Court stated that “in the event the matter is ordered to arbitration, the instant dispute [the motion for preliminary injunction] would be heard by the arbitrator.” (Minute Order, May 28, 2026.)

In any event, CCP § 1281.8 provides no basis upon which a motion to compel arbitration may be denied. As correctly pointed out by Defendant in reply, this section presumes that the dispute is arbitrable and permits a party to seek provisional relief from the Court. While Plaintiffs request a ruling from the Court that the Court will still hear the motion for preliminary injunction on July 9, 2026 even if the matter is ordered to arbitration, the Court will make no such ruling.

The motion is granted. This matter in its entirety must be arbitrated in accordance with the arbitration provision in Section 6 of the Fee Agreement.

In addition, the entire action is stayed pending arbitration. (CCP § 1281.4.)

The notice of motion does not provide notice of the Court’s tentative ruling system as required by Local Rule 1.06(D). Defendant’s counsel is ordered to notify Plaintiffs immediately of the tentative ruling system and to be available at the hearing in person, via Zoom or by telephone, in the event Plaintiffs appear without following the procedures set forth in Local Rule 1.06(B).

This minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.